Posted on January 30, 2014 by Megan Hawley 4

Changes to Complying Development in NSW

On 22 February 2014 amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), and the Environmental Planning & Assessment Regulation 2000 (Regulation)  in respect of complying development will come into effect.

The amendments to the Codes SEPP are substantial, and cannot be covered comprehensively here. It should be noted, however, that whilst the title of the amending SEPP refers to ‘Commercial and Industrial Development and Other Matters’ the provisions regarding residential development in the Codes SEPP are also modified.

Summarised below are some of the key changes to the procedures for the making of applications for complying development, and the conditions which can be imposed on certificates.

Neighbour Notification of Complying Development

One of the key changes in respect of complying development is that a certifier now has 20 days to issue certain types of  complying development certificates, increased from 10 days. That increase seems primarily to have been introduced to enable notification of neighbours as there is a new requirement that neighbours within 20m of the subject property be given notice of a complying development application 14 days before the complying development certificate is granted.

This requirement for advance notice of the grant of the certificate is new. Neighbours still do not have any rights to object to an application. However, 14 days would give a neighbour wishing to prevent development the opportunity to seek advice on whether the proposed development is in fact complying development, and make representations to the certifier in that respect.

This requirement for 14 days advance notice, and a 20 day approval timeframe relates only to development involving the following, although not in residential release areas:

• new dwellings or additions to existing dwellings
• development specified in Part 7 of the Codes SEPP (the Demolition Code); and
• development specified in Division 2 or 7 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009.

The other change to neighbour notification is that 7 days (increased from 2 days) notice of the commencement of works pursuant to a complying development certificate is required for development of the above types.

Excluded Land

Changes have been made to the provisions of the Codes SEPP in respect of land on which exempt or complying development can be carried out. Previously if part of a lot was in an environmentally sensitive area, then no exempt or complying development could be carried out on any part of the lot.

Amendments to the Codes SEPP will mean that exempt or complying development can now be carried out on the part of the lot which is not within the excluded area.

There are new requirements in the Regulation regarding the information to be included on certificates issued under s149 of the Environmental Planning & Assessment Act 1979 (EPA Act) in this respect.

Development contributions

Contributions under s94 or 94A of the EPA Act have always been payable in respect of complying development which is of a type in respect of which a contributions plan requires contributions.

The amendments to the Regulation require a condition to be imposed on a complying development certificate requiring payment of a s94 or 94A contribution prior to the commencement of work, despite anything to the contrary in the relevant contributions plan. The requirements in the Regulation regarding the making of contributions plans are also amended to require new contributions to reflect this change in timing.

Additional reports to accompany CDC applications

The Regulation includes new provisions in respect of fire safety for older buildings constructed before 1 January 1993.

If the proposed development is a change of use of the existing building or an alteration extension or expansion of an existing building, and the land is greater than 500m2, then the complying development application needs to be accompanied by a report prepared by an independent accredited certifier regarding compliance with the Building Code of Australia, recommendations with respect to work which should be undertake to restrict the spread of fire from the building, or to protect persons in the building from fire and any ongoing strategy for fire protection for the building.

The report cannot be prepared by the certifier who is determining the complying development application.

In respect of new industrial buildings or additions to existing commercial or industrial buildings, an application must be accompanied by a statement regarding whether the land has previously been used for potentially contaminating purposes, and if so, a further report from a suitably qualified person must be provided regarding the suitability of the land for the development with or without remediation works. If any works are specified as being required for the land to be suitable for the development, then the certificate must be issued subject to a condition requiring those works to be carried out.

The additional information required could significantly increase the costs of making a complying development application, and carrying out the development.

Security

There are now provisions enabling conditions to be imposed on complying development certificates requiring a security bond in respect of building works valued at more than $25,000 adjacent to a public road. A bond can only be required if the relevant Council has published on its website information regarding the security bond which will be required. The Regulation specifies that the security can only be called up to meet the cost of making good any damage caused to any property of the council as a result of any act or omission authorised by the complying development certificate.

Savings

Any applications for complying development certificates made but not determined before 22 February 2014, will be determined in accordance with the Regulation and Codes SEPP as they were immediately before that date. Therefore applications lodged before 22 February 2014 will not have to comply with the increased reporting requirements.